E-Discovery Law

E-Discovery Law refers to the relatively new sets of rules pertaining to obtaining electronically stored information during a lawsuit in the investigative phase of the proceedings called "discovery." During discovery, each side is entitled to request and obtain information from the other party or parties, as well as from outside entities or witnesses. Historically, this would mean interviews with witnesses and the exchange of various documents and tangible evidence.

How is E-Discovery Different?

Much of e-discovery is the same as traditional discovery, except that it pertains to electronic, intangible evidence. Electronically stored information (ESI) is any document, image, e-mail, instant message transcript, accounting databases, video, web site, or any other electronically-stored information that could be relevant evidence in a lawsuit.

Meta-Data

Moreover, e-discovery may lead to a much broader range of investigation due to the existence of hidden information coded into the file called meta-data. While the relevancy of the ESI would tend to be the same as traditional discovery, often of greater interest / concern is the meta-data contained in these files. Meta-data may include information as to who has accessed a file, who made revisions, when this occurred, even copies of the prior versions of the file. This meta-data has led to interesting new challenges for attorneys and parties alike. It can throw open a new level of insight as to who has worked on a file, when, and what they did. Of course, this could prove an invaluable resource for those trying to show a party has engaged in evidence tampering, or a nightmare for those continuing to use files and drawing attacks from the opposing party for spoliation of that evidence. Entire industries have sprung up to assist businesses in establishing policies for handling and retaining materials that may later become subject to e-discovery specifically for the purposes of preventing the creation or disclosure of potentially harmful meta-data.

The resources below contain additional information regarding e-discovery, and you can find law firms in your location that can help you understand the e-discovery process under the law firms tab, above.

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E-Discovery Law - US

Electronic discovery (or e-discovery, eDiscovery) refers to discovery in civil litigation which deals with the exchange of information in electronic format (often referred to as Electronically Stored Information or ESI). Usually (but not always) a digital forensics analysis is performed to recover evidence. A wider array of people are involved in eDiscovery (for example, forensic investigators, lawyers and IT managers) leading to problems with confusing terminology.

During the e-discovery process, keep the e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE) close by. These federal rules apply to the process for preparing and producing ESI, as well as for resolving related disputes.

These rules govern the introduction of evidence in proceedings, both civil and criminal, in Federal courts. While they do not apply to suits in state courts, the rules of many states have been closely modeled on these provisions.

This page contains links to articles, PowerPoint slide presentations, and other items of interest on electronic discovery. Unless otherwise noted, these materials were prepared by Federal Judicial Center staff for use in judicial and continuing legal education programs and are not subject to copyright. They may be downloaded and republished without permission.

Organizations Related to the E-Discovery Law

Welcome to DiscoveryResources.org, where you will find the most up-to-date information, resources and news available about electronic discovery. Given the rapidly increasing importance of electronic evidence in litigation, DiscoveryResources.org offers much needed resources for legal professionals who seek to understand the many new technological and legal challenges associated with electronic discovery.

Publications Related to E-Discovery Law

The Federal Rules of Civil Procedure (FRCP) govern the evidence discovery process for litigation in Federal and U.S. District Courts. Prior to December 2006, the FRCP included no specific provisions dealing with electronically stored information (ESI), which led to ad hoc and inconsistent decisions being made with regard to ESI discovery. Through the actions of the Advisory Committee on Civil Rules, amendments to the FRCP that specifically dealt with ESI were enacted. Many state evidentiary rules apply to the production of electronic information as part of the discovery process in state courts.

In 2006, the Federal Rules of Civil Procedure were amended to provide a uniform set of rules across the federal courts to govern the preservation, collection and production of ESI. Most in-house and outside counsel who regularly litigate complex disputes are familiar with these federal e-discovery rules. At the state level, however, in-house and outside counsel must navigate a more byzantine legal landscape